THE STATE OF WESTERN AUSTRALIA -v- ND [2026] WADC 36

[2026] WADC 36 [2026] WADC 36 (MW) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : PERTH CITATION : THE STATE OF WESTERN AUSTRALIA -v- ND [2026] WADC 36 CORAM : RITTER DCJ HEARD : 18 MARCH 2026 DELIVERED : 5 MAY 2026 PUBLISHED : 21 MAY 2026 FILE NO/S : IND 2142 of 2024 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND ND Catchwords: Special proceedings as set out in s 41 of the Criminal Law (Mental Impairment) Act 2023 (WA) - Grievous bodily harm - Intellectual disability - At the time of doing the grievous bodily harm, because of mental impairment, the accused lacked capacity to know that he ought not to do the act - Not criminally responsible for the grievous bodily harm and not guilty pursuant to s 41(2)(b) of the Criminal Law (Mental Impairment) Act 2023 (WA) - Further submissions on order to be made -- 1 of 15 -- [2026] WADC 36 [2026] WADC 36 (MW) Page 2 Legislation: Criminal Code Criminal Law (Mental Impairment) Act 2023 (WA) Result: Not criminally responsible for the grievous bodily harm Not guilty pursuant to s 41(2)(b) of the Criminal Law (Mental Impairment) Act 2023 (WA) Representation: Counsel: Applicant : Ms S M Manson-Grumley Accused : Mr R G Wilson Solicitors: Applicant : Director of Public Prosecutions Accused : Murray Chambers Case(s) referred to in decision(s): Nil -- 2 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 3 RITTER DCJ: [The names in this decision have been anonymised in these published reasons for privacy. The names were used in the decision circulated to counsel, and to those required to receive the decision under the Criminal Law (Mental Impairment) Act 2023 (WA).] The special proceeding 1 ND has been charged by indictment that on 16 October 2023 at Clarkson, he unlawfully did grievous bodily harm to MB. 2 A judge of this court has previously decided that ND is unfit to stand trial. This remains the position. 3 Presently before the court is a special proceeding under Part 3 div 3 subdiv 3 of the Criminal Law (Mental Impairment) Act 2023 (WA) (the CLMI Act). 4 The nature of the special proceeding is set out in s 41 of the CLMI Act. This provides as follows: 41. Nature of special proceedings (1) The purpose of a special proceeding is for the court, constituted by a magistrate or judge sitting alone, to decide the charge against the accused, on the evidence available. (2) In deciding the charge the court may find that the accused - (a) is not guilty (other than as described in paragraph (b)); or (b) is not guilty on account of mental impairment under The Criminal Code section 27; or (c) committed the offence charged or another offence which, on the charge, the accused might be found to have committed. (3) To find that the accused committed an offence, the court must be satisfied beyond a reasonable doubt. (4) The decision of the court must include the reasons for its decision but the validity of a decision is not affected by a failure to comply with this subsection. -- 3 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 4 Section 27 of the Criminal Code (WA) 5 Section 41(2)(b) of the CLMI Act provides for a finding that an accused is not guilty on account of mental impairment under s 27 of the Criminal Code (WA). 6 Section 27(1) of the Criminal Code provides: A person is not criminally responsible for an act or omission on account of mental impairment if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission. 7 In turn, mental impairment is defined in s 1 of the Criminal Code to mean 'intellectual disability, mental illness, brain damage or senility'. 8 Section 27(1) of the Criminal Code provides for three possible reasons where a person is not criminally responsible for an act or omission on account of mental impairment. These are, if at the time of the doing of the act or making the omission, the accused was in such a state of mental impairment as to: (a) deprive them of capacity to understand what they are doing; or (b) of capacity to control their actions; or (c) of capacity to know that they ought not do the act or make the omission. 9 The onus is on an accused to establish that on the balance of probabilities s 27 of the Criminal Code applies. The position of the parties and my conclusion 10 At the special proceeding, it was the position of ND that he was not criminally responsible for the act of doing grievous bodily harm because he was in such a state of mental impairment as to deprive him of the capacity to know that he ought not do the act or make the omission. This was based upon medical evidence which I will later consider. The State agreed with the submission that ND was not criminally responsible. -- 4 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 5 11 For the reasons I set out, in my opinion ND was not criminally responsible for the doing of the grievous bodily harm and is not guilty pursuant to s 41(2)(b) of the CLMI Act. Facts 12 At the special proceeding, neither party called any witnesses to give evidence, but a number of exhibits were received by consent. These included the prosecution brief and an amended statement of material facts dated 14 February 2024. 13 The facts asserted in the amended statement of material facts (Exhibit 8) are not disputed on behalf of ND. For present purposes, it is necessary to summarise the material facts. The full contents of the facts, if necessary for anyone to consider them, may be ascertained from the reading of Exhibit 8 and the prosecution brief. 14 The doing of the grievous bodily harm to MB occurred on 16 October 2023. On that date, MB was 15 years old. ND was 23 years of age. MB was friends with PP, the younger brother of ND. PP was 16 years of age on the relevant date. 15 On the relevant date, each of ND, PP and their mother, NW, resided at a unit in Clarkson. 16 At about 10 am on that date, NW left the unit for work. The complainant was at the unit at that time. He and PP remained at the unit playing video games inside PP's bedroom. At about 3 pm they decided to leave the house. 17 MB walked downstairs to the living room on the first floor. Whilst there, he saw ND holding a knife in one hand and a phone in the other. He was smiling and staring at him. MB went outside the house and sat down, waiting for PP. 18 ND followed MB outside the house and then started to go back inside. MB asked him 'are you going to get something?' ND shook his head and then went inside the house. 19 Whilst PP was upstairs in his bedroom, ND told PP to tell their mother to 'give him money'. He then slammed the bedroom door closed. -- 5 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 6 20 A short time later, whilst MB was in the backyard listening to music, ND exited the house holding a glass wine bottle. He smashed the wine bottle on the floor. Whilst holding the neck of the broken wine bottle, ND ran towards MB and shoved him to the ground using his forearm and elbow. Whilst MB was on the ground, ND stabbed at him with the broken glass bottle. ND stabbed MB to the right middle abdomen and right shoulder area, causing lacerations. He also stabbed MB to the left temporal area of his head, causing a large laceration. 21 MB punched ND in the stomach in self-defence and yelled for help. 22 He then ran upstairs to PP's bedroom and told him 'I'm going to die, your brother is trying to kill me'. 23 MB pressed his body up against the bedroom door to prevent ND from being able to open it. At this time, MB was bleeding heavily and PP took a photograph of the blood on the floor and the door of his bedroom and sent it to his mother. He also called his mother and asked her to call the police. MB and PP opened the bedroom window, knocked the flyscreen down and jumped out of the window from the second floor to the ground floor. 24 They ran away, yelled for help and were assisted by a nearby civilian. The civilian walked with MB and PP to the Clarkson Police Station. The civilian then called 000 for an ambulance. 25 Prior to the ambulance arriving, MB and PP got into the car of an unknown woman who drove them to Joondalup Hospital. 26 At the hospital, MB was treated by Dr Svetlana Trandos who observed the following injuries: (a) ongoing bleeding from an extensive open wound to the left temporal area - approximately 10 cm - 12 cm, going behind the left ear; (b) a 0.5 cm superficial laceration to the right middle abdomen; and (c) three superficial lacerations to the right anterior shoulder area. 27 MB's blood pressure was low and he had to receive treatment to raise his blood pressure and promote blood clotting to stop the bleeding. He was also given antibiotics to prevent infection. -- 6 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 7 28 On 4 January 2024, Dr Trandos provided her opinion about the injuries. Dr Trandos said that, while theoretically the bleeding could have ceased spontaneously as the major adjacent artery was not injured, that was unlikely due to the nature of the wound and the presentation of MB. In her opinion, the injury was likely to endanger life due to blood loss if there had been no medical intervention. 29 This opinion constitutes grievous bodily harm, the unlawful doing of which is an offence under s 297(1) of the Criminal Code and as defined in s 1 of the Criminal Code. Admissions 30 At the special proceeding, written admissions were made on behalf of the accused under s 32 of the Evidence Act 1906 (WA). This was received as Exhibit 2 at the special proceeding. The admissions were made on behalf of the accused's guardian and mother, NW. They were also made in the exercise of the independent discretion of the accused's legal practitioner, pursuant to s 38(2) of the CLMI Act. The admissions were signed by NW and Mr Wilson, the accused's legal practitioner, and dated 18 March 2026. 31 The admissions were: 1. ND was the offender who did the act. 2. MB sustained grievous bodily harm. 3. ND caused the grievous bodily harm sustained by MB. 4. ND did so unlawfully. 5. ND admits the content of the Amended Statement of Material Facts dated 14 February 2024, [1] - [41]. 32 These are the material facts which I have summarised above. Reports from Dr McCann 33 The submission that s 27 of the Criminal Code applies to ND is primarily based upon the evidence of Dr Marie McCann. Dr McCann provided a neuropsychological report dated 4 March 2026. She also provided a supplementary opinion by email to Mr Wilson on 12 March 2026. Both were received as exhibits. The State did not question any of the opinions expressed in these exhibits. -- 7 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 8 34 The report dated 4 March 2026 is headed 'neuropsychological report - fitness to stand trial'. In an appendix to the report, Dr McCann says that she has completed a Bachelor of Arts (Honours) in Psychology, a Master of Psychology (Clinical Neuropsychology) and a Doctor of Philosophy. The appendix says Dr McCann was fully registered as a psychologist in 2016 and endorsed to practice in the area of clinical neuropsychology. 35 For present purposes, it is necessary to only summarise the contents of the report. The report is comprehensive. It sets out the purposes of assessment, sources of information, assessment tools and information accessed. 36 The report sets out ND's family and social history, medical and mental health history, substance use history, educational and occupational history. 37 Under the heading 'current concerns and complaints', Dr McCann said that ND denied significant problems with his ability to independently manage his activities of daily life. NW currently has a guardianship order which was organised after the current alleged offence. The one-year order is due to expire on 18 September 2026. 38 When asked about ND's current cognitive functioning, he and NW reported weaknesses in attention in that he struggles to stay focused during conversations or when watching television. It was also said that his memory had become quite poor after the age of 15 and there were longstanding difficulties with planning and organising, with NW usually doing this for him. ND was said to be able to read at a basic level in Thai. 39 As earlier set out in the report, ND was born and raised in Thailand. NW moved to Australia in 2018. ND moved to Australia in 2022 to live with his mother. At the time of the assessment he was living with his mother, stepfather and younger brother. 40 Dr McCann set out in her report past treatment and assessments of ND. 41 The report of Dr McCann referred to a report dated 27 October 2025 by Consultant Forensic Psychiatrist, Dr Elizabeth Tate. This followed psychiatric review by her and consideration of documents received from Thailand. -- 8 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 9 42 Dr Tate said that her opinion was that ND had diagnoses of 'intellectual disability (cognitive testing done during the admission was said to indicate this), possible autism spectrum disorder (ASD), suspected traumatic brain injury, likely post-traumatic stress disorder following an assault, and mild depression and anxiety (controlled with antidepressant medication)'. 43 The 'admission' there refers to the admission of ND to the Frankland Centre on 1 October 2025. 44 During her consultation with ND, Dr McCann administered tests. She formed the opinion that the results on the assessments were an accurate reflection of his current cognitive functioning in daily life. The test materials and questionnaires are described in an appendix to the report. 45 The following results were relevantly obtained. 46 ND's performance on a measure of his English word reading placed him in the extremely low range. 47 ND's core intellectual abilities by way of a non-verbal test assessing general intelligence showed ND to be in the extremely low range commensurate with that of a 6-year-old child. 48 ND's performance on measures of visual attention whilst scanning and sequencing was variable, placing him in the extremely low to average range. Qualitatively, he was observed to struggle to maintain his focus on tasks. 49 ND's performance on measures of his visuomotor processing speed placed him in the very low to low average range. 50 ND's performance on a measure of his visual memory when copying a complex geometric figure were within the extremely low range. 51 NW was asked questions about ND's adaptive functioning as part of Dr McCann's assessment. Dr McCann said that NW's responses rated ND's general adaptive composite and domain scores as falling within the impaired range (extremely low). -- 9 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 10 52 Dr McCann also administered the Sociomoral Reflection Measure (SRM). Relevantly, Dr McCann said:1 The SRM was administered in an attempt to assess [ND]'s developmental stage of moral reasoning, as part of determining the potential application of section 27 of the Criminal Code (WA). The SRM assesses the maturity of an individual's moral reasoning based on how they justify moral decisions. However, there were several limitations to the use of the SRM including [ND]'s culturally and linguistically diverse (CALD) background, [ND]'s need for frequent prompting and clarification of items, and the use of an interpreter. Thus, while his scores on the SRM indicated an immature level of sociomoral reasoning, this finding needs to be interpreted with caution. That said, his mother indicated that he had always been a poor decision maker and had limited judgment across most situations, and relied on her to make decisions for him. This longstanding pattern provides additional evidence of immature moral reasoning beyond the SRM scores. 53 Dr McCann assessed whether ND met the criteria for autism spectrum disorder under DSM-5. Having done this, Dr McCann formed the opinion that ND did not fit the criteria necessary to support a diagnosis of autism spectrum disorder. 54 Dr McCann said:2 66. On formal assessment (conducted with interpreter assistance), [ND]'s Full Scale IQ fell within the extremely low range, as did the majority of his test scores. The degree and pattern of impairment observed was considered to reflect genuine cognitive deficits and was not adequately explained by cultural or second-language factors alone. 67. Extremely low test scores revealed impairment in intellectual functioning, nonverbal reasoning, attention, visuospatial skills, visual memory, word reading, and executive functions (namely planning and organisation, though qualitatively significant weakness was noted in his impulse control). Relative to his same aged peers, significant weakness was also noted in his processing speed, and visual perception, as evidenced by test scores falling within the very low to low average range. A strength in his profile was his performance on a measure of his basic cognitive flexibility which fell within the average range. 1 Report of Dr McCann dated 4 March 2026, par 44. 2 Report of Dr McCann dated 4 March 2026, pars 66 - 69. -- 10 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 11 68. [ND]'s mother's responses on an adaptive functioning questionnaire indicated that his overall adaptive functioning (or General Adaptive Composite) also fell within the extremely low range. Further, collateral information provided by his mother indicated longstanding learning difficulties, academic failure, and functional limitations during the developmental period, supporting the presence of early onset deficits in intellectual and adaptive functioning. 69. Collectively, [ND]'s current cognitive and adaptive profile is consistent with an intellectual disability. (Original emphasis) 55 With respect to s 27 of the Criminal Code, Dr McCann expressed the following opinions in her report:3 71. With regard to the potential application of section 27 of the Criminal Code (WA), [ND]'s intellectual disability indicates that, compared to same-aged peers, he demonstrates significant, longstanding limitations in critical reasoning, problem solving, abstract thinking, and the ability to anticipate and weigh up the consequences of his actions. Further, he is likely to struggle to respond in a considered and well-thought out manner in situations requiring rapid processing and judgement. His presentation is also consistent with developmentally immature moral reasoning secondary to intellectual impairment, and this appears to be longstanding as indicated by his mother's reporting. There is no evidence to suggest any decline in these abilities since the alleged offending. In my opinion, these longstanding cognitive and moral reasoning limitations would have substantially restricted his capacity to fully appreciate the nature and wrongfulness of his actions at the time of the alleged offending. 72. While I cannot definitively comment on [ND]'s mental health at the time of the alleged offence, any potential psychiatric symptoms (including psychotic or affective disturbances), would have likely exacerbated the above (pre-existing) cognitive and moral reasoning limitations. 73. These observations are relevant to consideration of the potential application of section 27 of the Criminal Code (WA), which requires assessment of a person's capacity to appreciate the nature and wrongfulness of their actions. 56 Based upon the qualifications of Dr McCann, materials referred to in her report, and her testing, I accept her opinions. 3 Report of Dr McCann dated 4 March 2026, pars 71 - 73. -- 11 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 12 57 Before the special proceeding, as stated above, Dr McCann provided an email of supplementary opinions to Mr Wilson on 12 March 2026. Dr McCann was asked specifically to provide additional opinions about par 71 of her report. 58 In the email Dr McCann said:4 … in referring to [ND]'s capacity to 'appreciate the nature and wrongfulness of his actions', I was addressing both his ability to understand the nature of his actions and his ability to appreciate their wrongfulness. However, my opinion was primarily directed towards his ability to appreciate the wrongfulness, given the significant limitations in moral reasoning associated with his intellectual disability and the potential impact of reported psychotic symptoms at the time. 59 In answer to a direct question quoted in her email, Dr McCann expressed the opinion that:5 … [ND]'s longstanding cognitive and moral reasoning limitations, consistent with his permanent intellectual disability, deprived him of the capacity to know that he ought not to do the act at the relevant time. This conclusion is based on his intellectual disability and associated deficits in moral judgment, which are longstanding and evident from both assessment and informant reports. There is no reason to believe these deficits would have differed at the time of the alleged offending, although any reported psychotic symptoms may have further exacerbated these limitations. 60 Dr McCann was also asked whether ND's longstanding cognitive and moral reasoning limitations deprived him of the capacity to understand what he was doing at the time of the alleged offending. Dr McCann said:6 It was possible that [ND]'s longstanding cognitive and moral reasoning limitations affected his capacity to fully understand the nature of his actions. However, his level of cognitive function and awareness indicate that he retained at least some understanding of what he was doing, certainly his presentation does not suggest a level of cognitive impairment associated with a complete absence of awareness of one's actions. 61 Dr McCann said that, whilst executive functioning and reasoning were impaired on testing, those deficits did not allow a definitive conclusion that he was deprived of this capacity. 4 Email of Dr McCann to Mr Wilson dated 12 March 2026. 5 Email of Dr McCann to Mr Wilson dated 12 March 2026. 6 Email of Dr McCann to Mr Wilson dated 12 March 2026. -- 12 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 13 62 Dr McCann was also asked whether ND's longstanding cognitive and moral reasoning limitations deprived him of the capacity to control his actions at the time of the alleged offending. Dr McCann said:7 … there is no evidence from my assessment that he completely lacked the capacity to control his actions. 63 I accept the opinions contained in the email from Dr McCann for the same reasons earlier set out. Conclusion based on evidence of Dr McCann 64 The opinions of Dr McCann are such that ND does not suffer from a mental impairment which would make him not criminally responsible on the first two bases set out in s 27(1) of the Criminal Code. However, her opinions are consistent with ND not being criminally responsible for the doing of the grievous bodily harm because of the third limb of s 27(1) of the Criminal Code. That is, at the time of the doing of the grievous bodily harm, because of mental impairment, he lacked the capacity to know that he ought not to do that act. 65 On the basis of Dr McCann's opinions, I find that ND was not criminally responsible for the doing of the grievous bodily harm. 66 Section 43 of the CLMI Act sets out the effect of findings made at a special proceeding. Relevantly, s 43(2) provides: If a finding is made under section 41(2)(b), the accused is taken for all purposes to have been found not guilty on account of mental impairment under The Criminal Code section 27 at a criminal trial. Order to be made 67 Part 5 of the CLMI Act is headed 'Court-ordered dispositions'. As set out in s 45(1), it provides for the orders that can be made by a court, including where an accused has been acquitted on account of mental impairment at a special proceeding. 68 Section 45(2) provides that three types of orders can be made. They are: (a) a CO (meaning a custody order); (b) a CSO (meaning a community supervision order); 7 Email of Dr McCann to Mr Wilson dated 12 March 2026. -- 13 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 14 (c) an order that an accused be released unconditionally. 69 It was the position of both parties that it would be appropriate for the court to make a community supervision order. 70 As provided for in s 52 of the CLMI Act, 'a community supervision order is an order that a person, while residing in the community, must comply with the conditions of the order for the protection of the community'. 71 Pursuant to s 53(1) of the CLMI Act, the term of a community supervision order must be set by the court and must not be more than 5 years. Section 53(2) of the CLMI Act provides the 'order begins on the day on which the order is made'. 72 Section 54 sets out statutory conditions of a community supervision order and s 55 provides for conditions that may be imposed by the court if it considers them necessary to protect the community. 73 Section 47(1) of the CLMI Act provides that, when making an order under Part 5, the court must have regard to the factors there set out from (a) - (i). Section 47(1)(h) and s 47(1)(i) are not relevant as they refer to a child. However, s 47(1)(a) - s 47(1)(g) are relevant and are as follows: (a) the protection of the community; (b) the nature of the offence and the circumstances of its commission; (c) the person's character, antecedents, age and health; (d) the nature of the person's mental impairment; (e) the relationship between the mental impairment and the offending conduct; (f) the degree of risk that the person appears to present to themself or the safety of the community because of their mental impairment; (g) the extent to which adequate resources are available for the treatment, care and support of the person in the community; -- 14 of 15 -- [2026] WADC 36 RITTER DCJ [2026] WADC 36 (MW) Page 15 74 Before making a decision on the order to impose, I require additional submissions from counsel about these factors; and also the conditions that should be made by the court, under s 54 of the CLMI Act if a community supervision order is imposed. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. EJ Associate to the Judge 5 MAY 2026 -- 15 of 15 --